Congress initially intended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)¹ to provide a statutory framework for addressing what Congress believed to be a manageable number of sites presenting significant risks to human health and the environment.² CERCLA's liability scheme, however, has had an unanticipated chilling effect on the willingness of parties to purchase or otherwise use contaminated sites throughout the country.³

The 20th anniversary of Superfund¹ is a time to reflect upon the extraordinary history of this singular environmental law. This Dialogue begins with an overview of that history. It then offers some observations about Superfund's achievements and about the evolving societal strategy for addressing contaminated sites. Finally, this Dialogue examines some of the many challenges that still confront Superfund as it moves into its third decade.

Introduction

Two major, integrally related trends define U.S. environmental law at the millennium. The first trend is to bring presently unregulated risks under the control of the regulatory system. The second trend . . . is toward bigger bubbles—toward broader and broader trading among pollutants and even among various types of risk reduction . . . .¹

Introduction

On December 7, the U.S. Supreme Court issued a writ of certiorari to the Sixth Circuit Court of Appeals in Citizens to Preserve Overton Park, Inc. v. Volpe, 1 ELR 20053, 1 ERC 1685, __ F.2d __ (6th Cir. 1970); reh'g denied, Oct. 30, 1970, aff'g, 309 F. Supp. 1189 (W.D. Tenn. 1970; cert. granted, 39 U.S.L.W. 3256 (1970). Petitioners are seeking to challenge the manner in which federal officials approved the construction of Interstate Highway 40 through Overton Park, a 342-acre wooded, publicly owned park in downtown Memphis, Tennessee.

Before the Supreme Court now is the Sierra Club's petition for the writ of certiorari in Sierra Club v. Hickel, 1 ELR 20015, 2 ERC 2669, __ F.2d __ (9th Cir. Sept. 16, 1970). The Sierra Club seeks certiorari because the court of appeals held (2-1), in a decision reversing the district court below (1 ELR 20011), that the club did not have standing to challenge the actions of federal officials who were about to permit Walt Disney Productions, Inc.

The National Environmental Policy Act of 1969 (NEPA) 43 U.S.C. §§4321 et seq., 1 ELR 41009, was signed into law by President Nixon on New Year's Day, 1970. This month, on NEPA's first anniversary, the Environmental Law Reporter is publishing Ronald Peterson's analysis of Title I of the act (1 ELR 50035). His article shows that during the past year, the broad mandates of the act to some extent did affect federal agency action and did afford private parties a means by which to challenge environmentally damaging federal action in the courts.

The Council on Environmental Quality has asked interested parties to submit suggestions that they may have for changes in the Council's Interim Guidelines, 1 ELR 46001. The Council's request appears at 35 Fed. Reg. 18219 and requests that suggestions be submitted by December 31, 1970. The Subcommittee on Administrative Procedures of the Council's Legal Advisory Committee has reviewed a number of §102(2)(C) statements, with a view toward suggesting changes in both agency practices and in the Council's Interim Guidelines. The subcommittee, which is chaired by Prof.

The president has taken administrative action by Executive Order, 1 ELR 45007, to set up a federal permit system under which industrial facilities will be issued permits for waste discharges under the combined authority of the Federal Water Pollution Control Act, as amended, 1 ELR 41101 (especially §21(b) of the 1970 Water Quality Improvement Act) and the Refuse Act, 33 U.S.C. §§407, 411, 413, 1 ELR 41141, which is part of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§401 et seq.

The Michigan Environmental Protection Act of 1970, 1 ELR 43001, Act 127, P.A. 1970, Mich. Comp. Laws Ann. §§691.1201 et seq.

As of October 1, 1970, environmental degradation of all kinds in the state of Michigan has been subject to privately initiated civil actions under a simple statute that may well provide a model for legislation in other states. A similar bill has been introduced in the United States Senate and hearings commenced on May 12, 1970. ER Current Developments 46-47, 80, 275-76, 423.